Legally Speaking – From Tombstone To Dodge

This past week, I received several emails from cyclists in Colorado regarding enforcement of the two-abreast law by the sheriff of Larimer County. This is the first time in recent memory that I’ve received so many letters on a bicycle law issue before I’ve written a column on the issue. Clearly, Colorado cyclists are unhappy with the Sheriff, who, as you will see, fancies himself to be something of a latter-day Western lawman in the mold of his childhood hero, John Wayne. So this week, by popular demand, we’ll be shifting our attention from Tombstone to Dodge.

Bob

Hi Bob,

I live in Fort Collins, Colorado, home of Colorado State University, six strong cycling clubs/teams, New Belgium Brewery, and a vibrant cycling culture.

Recently, we’ve been warned through our local newspaper, The Coloradoan, and the county Sheriff’s blog that county law enforcement will begin ticketing riders riding two abreast and jailing those without identification. Citing multiple driver complaints and the safety of cyclists, the Sheriff’s office has decided to interpret cyclist law in Colorado in an extremely stringent manner. I read this morning that Bicycle Colorado is getting involved in the issue.

I’m curious for your thoughts in response to this and advice on what really is legal in our state (I know what the law says – what does it mean in practicality?).

Thanks,

B. H., Fort Collins, Colorado

Hello B.H.,

Thanks to everybody who wrote me with a “heads up.” When I saw the number of letters about the Sheriff’s blog, it was apparent that there was something going on in Colorado that I needed to take a look at. It was also apparent that Colorado cyclists don’t take infringements of their rights laying down, and for that, we should all tip our cycling caps to them. But having done that, we have to ask, who’s right here? The Sheriff, or the cyclists? Thankfully, the Sheriff has been kind enough to put his thoughts on the law (and cyclists, and Boulder) on his blog for all to see, so it’s actually fairly easy to determine whether his interpretation of the law is in accord with what the law actually says. So without further ado, let’s see what all ruckus is about.

The Sheriff of Larimer County is Jim Alderden, who is currently serving his third term “by God’s will” after divine intervention in the November 2005 election. While divine intervention got the credit for keeping him in office, it was NRA dollars that got him there in the first place. Flanked by life-sized cardboard cut-outs of his childhood hero, Sheriff Alderden first made headlines when he repaid his debt to the NRA, handing out CCW (“Carrying Concealed Weapon”) permits , to anybody who wanted one. (The revelry didn’t last long, though, when the permit recipients discovered that the Sheriff had also entered their names into a criminal database.) Likewise, with the Duke at his side, Sheriff Alderden repaid his debt for divine intervention when, with the help of his childhood hero, he turned his sights on the First Amendment’s separation of church and state.

Having duly run the First Amendment out of town, the Sheriff next turned his sights on a gang of desperadoes—or should I say “desperoadies”—who rode into town like they had a right to be there, or something. Their crime? They rode in two abreast on their carbon fiber steeds. However, while the Sheriff does take credit for staring them down at high noon, he says they were never told to “get out of Dodge.” Not that it helped his deniability any that he said with so many winks (“anytime you get to even suggest something to deal with Dodge City, its okay in my book”) that the townsfolk thought he’d developed a facial tic.

Nevertheless, the Sheriff denies that cyclists were given the “don’t let the sun set on your behind in my County” speech, so let’s take him at his word and assume that the cyclists were only given the “if you stay in Dodge, be prepared to follow the rules or suffer the consequences” speech.

So what are the rules in Dodge? In “Cyclists and Dodge City,” Sheriff Alderden discusses three separate legal issues—his interpretation of Colorado’s two abreast law, Colorado’s law on showing I.D., and the rights of cyclists—so it would be useful to examine his interpretation of each of these issues in turn. Because the legal issues raised by Sheriff Alderden require some analysis, we’ll be taking a look at them both this week and next. In next weeks column, we’ll be discussing Colorado’s law on showing I.D., and Sheriff’ Alderden’s take on protecting the rights of cyclists. But first, we’ll kick things off this week with a look at Sheriff Alderden’s analysis of Colorado’s two-abreast law.

Two Abreast in Colorado

In “Cyclists and Dodge City,” Sheriff Alderden explains why he will be ticketing cyclists who are riding two abreast by discussing his interpretation of Colorado’s two abreast law. He breaks his analysis down into three distinct components: The requirement to ride to the right, riding two abreast, and how the requirement to ride to the right affects riding two abreast. We’ll be looking at each of these in turn, to sort out whether the Sheriff’s interpretation of the law is right or not.

For those of you who are reading this on company time, and need to get back to work soon, I’m going to give you the short answer up front: The Sheriff’s interpretation of Colorado’s riding two abreast statute is wrong (you didn’t think there’d be a chance that he would be right, did you?), for two reasons. First, he interprets the law to mean that cyclists can be in violation of the law even if they are only potentially impeding traffic by riding two abreast. While the Sheriff makes a plausible argument, the better legal argument is that it can be inferred from the statutory language that cyclists must be actually impeding traffic in order to be in violation of the law. Second, the Sheriff argues that the requirement to ride to the right isn’t negated by the two abreast clause. However, while that’s true, it’s also true that the two abreast clause isn’t negated by the requirement to ride to the right. Therefore, the better legal interpretation is the one that gives full effect to the entire statute, and that means that cyclists riding two abreast are not necessarily going to be required to ride to the right when the law allows them to ride two abreast.

That’s the short of it; now you can skip ahead to the end, where I say “See you next week,” before getting back to the job. For the rest of you, who have your priorities straight and want to dive headlong into the juicy details, here’s the run down on why the Sheriff got the law wrong.

Take the lane, or ride to the right?

In Colorado, cyclists are allowed the full use of the right-hand lane; this is the default position. However, there are two exceptions to this default position. First, if the cyclist is being overtaken by another vehicle, the cyclist must ride as close to the right-hand side as practicable. Once the vehicle has passed, and assuming that no other vehicles are preparing to overtake, the cyclist may resume taking the full lane. If the cyclist is riding at the same speed as other traffic, and is therefore not being overtaken, there is no legal requirement for the cyclist to ride to the right.

Now, as readers of Bicycling & the Law know, “practicable” is not synonymous with “possible,” which means that when it comes to understanding Colorado law, they’re already a step ahead of Sheriff Alderden, who uses “practicable” and “possible” interchangeably. If you think of the law as saying you must ride as close to the right as is safe, rather than as close to the right as possible, you’ll be right on the money.

The second exception to the cyclist’s default position in the right-hand lane is that when “a paved shoulder suitable for bicycle riding is present” cyclists must ride on the paved shoulder. This exception to allowing cyclists the full use of the lane is mandatory, regardless of whether traffic is present or not. Note, however, that there are two requirements necessary for this exception to take effect: The shoulder must be paved, and it must be “suitable” for bicycle riding. If the shoulder is not paved, or if it is not “suitable,” then there is no legal requirement for cyclists to ride on the shoulder, again, regardless of whether traffic is present or not. So what does “suitable” mean? The law isn’t explicit on that point, but we can infer from the statute that a shoulder “suitable for bicycle riding” means a shoulder that is free of “hazardous conditions, including, but not limited to, fixed or moving objects, parked or moving vehicles, pedestrians, animals, or surface hazards.”

Riding two abreast

Now, although taking the lane is the default position in Colorado law, riding two abreast is not; in Colorado, cyclists must ride single file. However, as there is with taking the lane, there are two exceptions to the requirement to ride single file. First, cyclists may ride two abreast “when it will not impede the normal and reasonable movement of traffic.” As those who’ve read “Bicycling & the Law” know, “normal and reasonable” refers to traffic that is both the mainstream flow of traffic, and that is traveling at a “reasonable” speed. If “normal” traffic is not traveling at a “reasonable” speed (which is based on the actual road, visibility, and meteorological conditions, and may be lower than the speed limit, but is never higher than the speed limit), cyclists have no legal obligation to single up. However, this only means that cyclists riding two abreast can’t be ticketed for impeding a speeding driver, and they can’t be held liable if they are injured or killed by a speeding driver; although there is no legal obligation for cyclists to single up when speeding motorists approach, for their own safety, they should single up. Note that Colorado law requires that cyclists who are riding two abreast as the law allows must ride within a single lane.

The second exception to the single file rule is when cyclists are “riding on paths or parts of roadways set aside for the exclusive use of bicycles”—for example, when cyclists are riding in bicycle lanes.

Now, the Sheriff maintains that in Colorado the law requires cyclists to single up if they “will” impede traffic, meaning that if traffic approaches cyclists riding two abreast, they must single up, even if the approaching traffic can safely and legally pass the cyclists without delay. And of course, cyclists in both Larimer and Boulder counties maintain that they are only required to single up if traffic will actually be impeded—not if it could theoretically be impeded. So who’s right? Let’s take a little closer look at the statutory language, because there’s an answer to that question.

Under the Uniform Vehicle Code, or “UVC,” cyclists riding two abreast “shall not impede the normal and reasonable movement of traffic.” Under Colorado law, cyclists may ride two abreast “when riding two abreast will not impede the normal and reasonable movement of traffic.” Although the UVC and the Colorado statute may sound virtually the same, there is a difference in language between the two: The UVC says that cyclists riding two abreast “shall not impede,” while Colorado law says that riding two abreast is permitted when it “will not impede.”

Thus, under the UVC, cyclists may ride two abreast as long as they are not actually impeding traffic. Under Colorado law, that same interpretation is possible, but the language also lends itself to a different interpretation: “will not impede traffic” can also mean that cyclists must not “potentially impede traffic.” That is, if cyclists are riding two abreast, and if traffic will potentially be impeded by the cyclists if traffic comes along, then the cyclists “will be” impeding traffic. It is this second interpretation, that impeding traffic can mean the potential to impede traffic, that Sheriff Alderden has adopted. While the Sheriff’s interpretation of the statutory language is plausible, it is not the best interpretation of the statutory language, and thus, the Sheriff’s interpretation is the wrong interpretation.

The best interpretation of Colorado’s statutory language is that the statute contemplates that three conditions must exist in order for traffic to be impeded by cyclists riding two abreast. First, cyclists must actually be present on the road and riding two abreast. The statutory language contemplates this condition because this section of the statute only applies to cyclists who are riding two abreast. Second, the road conditions—for example, the speed limit, the width of the lane, the presence of a double yellow line, the volume of traffic, etc.—must be such that traffic will be impeded if cyclists are present and riding two abreast. The statutory language contemplates this condition because, by definition, traffic will not be impeded unless road conditions are insufficient to allow traffic to legally pass two abreast cyclists without delay. And third, traffic must actually be present. This condition is supported both by the rules of statutory construction (including the principle that the Legislature intended the plain meaning of the statutory language, the principle that the meaning of a word may be determined by reference to the rest of the statute, and the principle that the Legislature did not intend absurd results), as well as by logic: Just as cyclists must actually be present on the road in order to impede traffic, so too traffic must actually be present on the road in order to be impeded. To hold otherwise would be to read the two abreast provision out of the law.

Based on the statutory language, if all three of these conditions are fulfilled, the cyclists will actually be impeding traffic. On the other hand, if any one or more of these conditions are not fulfilled, the cyclists will not actually be impeding traffic. For example, if road conditions are such that traffic will be impeded by cyclists riding two abreast, and if traffic is present, but cyclists are not present, then traffic is not impeded. Similarly, if cyclists are present and riding two abreast, and if road conditions are such that the cyclists will impede traffic if traffic is present, but no traffic is actually present, then traffic again is not impeded. Thus, it is also true that if cyclists are present and riding two abreast, and if traffic is also present, but road conditions are such that the cyclists will not impede the traffic, then traffic again is not impeded.

Note, however, that under this interpretation of the law, if cyclists are present and riding two abreast, and road conditions are such that traffic will be impeded if it is present, then if and when traffic approaches the cyclists from behind, the cyclists must revert to a single file formation and allow the traffic to pass, even if the traffic can go around the cyclists by crossing the double yellow line. The reason the cyclists must ride single file in this situation is that it is not legal for the traffic to cross the double yellow line, and therefore, road conditions are such that traffic will be impeded by the cyclists riding two abreast.

In contrast to my interpretation of the statutory language that three conditions must be fulfilled in order for traffic to actually be impeded, Sheriff Alderden maintains that traffic “will be” impeded if cyclists are riding two abreast when traffic approaches, regardless of whether or not traffic can safely and legally pass the cyclists. This is the basis for the warnings to cyclists that they will be ticketed for riding two abreast in Larimer County. And this is the crux of the problem with the Sheriff’s interpretation of the law: It leads to an absurd result. It makes as little sense to cite cyclists for potentially impeding traffic when that traffic is actually able to safely and legally overtake the cyclists, as it does to cite cyclists for potentially impeding traffic when there is no traffic actually present on the road—another “potential” violation supported by the Sheriff’s interpretation of the statutory language. Ticketing cyclists in either of those situations is only slightly less absurd than ticketing cyclists who are not actually present on the road and riding two abreast.

In defense of his interpretation of the law, the Sheriff notes that “The arguments offered by the cyclists are similar to those made by many motorists when blowing stop signs. “There were no other cars coming, so “why should I have to stop?” – “They could still get around us, so what difference does it make?” The Sheriff’s analogy is misleading, however. All vehicles are required to stop at stop signs at all times—whether cross-traffic is present or not. However, cyclists are not required to ride single-file at all times. Instead, they may ride two abreast if they will not impede the “normal and reasonable movement of traffic.” Therefore, because they are not required to ride single file at all times, equating what is in actuality a legal argument advanced by the cyclists (about when the activity is permitted) with what is nothing more than an excuse for breaking the law is invalid. Instead, because cyclists are advancing a legal argument, the question that must be asked is whether riding two abreast is legal or illegal under a particular set of circumstances.

One possible explanation of the Sheriff’s interpretation of the law is supplied by Dan Grunig, Executive Director of ” Bicycle Colorado : The Sheriff is interpreting the current two abreast law, which was passed by the Colorado Legislature in 2005, to be consistent with the old two abreast law, which required cyclists riding two abreast to single up when a vehicle approached within 300 feet from behind.

Riding two abreast when being overtaken, or when there is a paved shoulder

Finally, in addition to arguing that Colorado law doesn’t require that traffic actually be impeded, Sheriff Alderden also argues that cyclists riding two abreast are still subject to the statutory requirements to ride as close to the right as practicable when being overtaken, and to ride on the paved shoulder when one is available. As the sheriff puts it, “while riding two abreast, one of the pair isn’t as far to the right as possible. When being overtaken, in order to get as far to the right as possible, they must ride single file if there is only one lane in that direction. If there is a paved shoulder, they should be riding on the shoulder, not in the traffic lane, regardless of whether or not they are impeding traffic.” So how does this interpretation square with the law?

As I noted above, Colorado law allows cyclists to take the lane at all times, with two exceptions. The first exception is when they are being overtaken by another vehicle. Under this exception, cyclists must ride as close to the right as practicable. The second exception is when a paved shoulder “suitable for bicycle riding” is available. Under this exception, cyclists must use the paved shoulder. Thus, Sheriff Alderden has noted correctly that in Colorado cyclists are required to ride on a paved shoulder when one is available (although he fails to note that this requirement is only applicable if a paved shoulder is both available and suitable for cyclists), or as close to the right as “practicable” when being overtaken.

Sheriff Alderden also correctly notes that the two abreast law doesn’t negate the law requiring cyclists to ride to the right under specified conditions. Therefore, he argues, “if there is a paved shoulder, they should be riding on the shoulder, not in the traffic lane, regardless of whether or not they are impeding traffic.”

In the same vein, he argues that cyclists riding two abreast must revert to riding single file when being overtaken, because “one of the cyclists isn’t as far to the right as possible” (note that Sheriff Alderden erroneously substitutes the word “possible” for “practicable” here. This is a common error among law enforcement officers, and one which cyclists must be vigilant for in traffic court).

Sheriff Alderden continues: “When being overtaken, in order to get as far to the right as possible, they must ride single file if there is only one lane in that direction.” Taken as a whole, Sheriff Alderden’s is a plausible interpretation of the statute requiring cyclists to ride as close to the right as practicable when being overtaken. However, just as it’s true that the requirement to ride to the right isn’t negated by the two abreast clause, it’s also true that the two abreast clause isn’t negated by the requirement to ride to the right. They must both be given effect. Therefore, the Sheriff’s interpretation of the law is not the best interpretation of the law, because it does not give full effect to the statute—it again reads riding two abreast out of the law, and reads nonexistent requirements (riding single file when being overtaken, or if there is a paved shoulder that is not wide enough for cyclists riding two abreast) into the law.

Rather, the best interpretation of the law would be one that gives full effect to the entire statute. That would mean that the best interpretation of the statute is one that meets three separate statutory objectives, the first of which is that cyclists may ride two abreast if they will not impede traffic.

The second statutory objective is that cyclists must ride as close as practicable to the right when being overtaken. However, despite this requirement, there is no corresponding requirement that cyclists must ride single file when being overtaken, unless they will be impeding that overtaking traffic by riding two abreast. This is because the cyclist farthest to the right is riding as close as practicable to the right, and the cyclist to his left is also riding as close as practicable to his or her right. To interpret the clause to mean that each cyclist must individually ride as close as practicable to the right would be to read the two abreast clause out of the statute. Nevertheless, if road conditions are such that cyclists riding two abreast are actually impeding overtaking traffic—for example, if a motorist cannot safely and legally overtake the two abreast cyclists—then the cyclists are required to single up.

The third statutory objective is that cyclists must ride on a paved shoulder when a paved shoulder suitable for cycling exists, regardless of whether traffic is present or not. In order to give full effect to the entire statute, if cyclists are riding two abreast and if there is a paved shoulder suitable for bicycles, the cyclist farthest to the right must use the paved shoulder; if there is room sufficient to make it practicable for both cyclists to ride two abreast on the paved shoulder, they must both ride on the paved shoulder. However, there is no requirement for them to ride single file for the sole purpose of enabling both cyclists to ride on the paved shoulder; such an interpretation would read the two abreast clause out of the statute. If, on the other hand, riding two abreast will impede traffic, then the law does require that the cyclists ride single file, regardless of the presence or absence of a paved shoulder.

So there you have it, the long and short of it. That’s it for this week; next week, we’ll be revisiting the Sheriff of Larimer County. Until then, keep riding, but keep it safe and legal.

Bob

(Research and drafting provided by Rick Bernardi, J.D.)

I’d like to thank everybody who has contacted me to request my appearance at their event. I will be speaking as extensively on “Bicycling & the Law” this year as my practice will allow, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com (and if you would like to contact me with a question or comment not related to my speaking tour, please drop me a line at mionskelaw@hotmail.com). I’m looking forward to meeting as many of my readers as possible this year.

Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.

If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:

The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.